What does the 1996 Hague Convention regulate?
The 1996 Hague Convention regulates jurisdiction, choice of law, recognition, enforcement and collaboration in relation to parental responsibility and protective measures for children.
The Convention applies to protective measures in the form of judicial or administrative decisions concerning parental responsibility, permanent place of residence, rights of access and contact, guardianship, placement in foster care and institutional care, and the administration of a child’s property. It also applies to parental custody as a direct result of a statutory provision or agreement.
The Convention regulates which state can make decisions to implement protective measures for a child. The main rule set out in the Convention is that the state in which the child is habitually resident can decide to implement protective measures. However, the state in which the child is currently staying may implement provisional measures and measures in urgent situations.
In exceptional cases, a case may be transferred to another state to which the child has a connection when this is in the best interests of the child. The Convention also contains rules about which state’s legislative framework should be used, and rules relating to the recognition and enforcement of protective measures for children decided in other states. The Convention provides for collaboration and the exchange of information about individual cases between contracting states.
States that have ratified the Convention can place children under care in another Vontracting state.
The Convention provides for:
- Collaboration and the exchange of information between contracting states about individual cases. This can be especially important in child welfare cases.
- Continued rights of access and contact between parent and child even if the child and its other parent move to another country.
Judicial or administrative decisions that are affected:
- Parental responsibility
- Permanent place of residence
- Rights of access and contact
- placement in foster care and institutional care
- administration of a child’s property
Rules relating to parental custody under a statutory provision or agreement
Parental responsibility prescribed by law or by agreement in the child’s previous and present state of residence shall be applied in a specific case when questions arise as to who has custody of the child, and this shall form part of the assessment. This also applies when the child’s previous state of habitual residence is not a contracting state. This is enshrined in the Children Act, section 84 a, which contains rules that are of significance in child welfare cases.
In the event of concerns about a child with a connection to another state
The child welfare services should contact the Norwegian Directorate for Children, Youth and Family Affairs when necessary in order to collaborate and engage in dialogue with other states.
Changes to the Children Act and the Child Welfare Act
The 1996 Hague Convention, the Norwegian Implementation Act (Lov om Haagkonvensjonen 1996) and related amendments will enter into force with effect from 1 July 2016. The amendments will ensure that legislation is fully in line with the Convention and its aims.
Placement in foster care or institutional care in another contracting state
Among other things, the amendments to the Child Welfare Act mean that a child may be placed in foster care or institutional care in another contracting state as a voluntary measure. It is a condition that parents and children over the age of 12 give their consent, and an agreement must be entered into with the state in which the placement takes place.
If a decision to issue a care order, or other coercive measure is taken in Norway, the child may not be placed in foster care or in institutional care in another state as a Norwegian child welfare measure. If the child has a strong connection to another state, for example through citizenship and family members, the child welfare services can assess whether it should request the other state to take over the case instead of bringing a case for a care order.
Transferring jurisdiction is relevant if it is considered best for the child to receive long-term follow-up in another country to which the child has a stronger connection.
Norwegian authorities may assist Norwegian children abroad to a greater extent
The amendments to the Child Welfare Act also mean that the Norwegian authorities may assist Norwegian children abroad to a greater extent. The Norwegian authorities will be able to make decisions about care orders for children who are habitually resident in Norway even if the child is staying abroad. This may discourage families from trying to leave Norway to avoid child welfare measures. It will also be easier for other states that are contracting states to contact and collaborate with the Norwegian authorities if they have a child welfare case that involves a Norwegian family.
If a Norwegian child is habitually resident in another state that is a contracting state, and this state is considering placement outside the home, the Norwegian authorities can be contacted with a view to requesting a voluntary placement in Norway or the transfer of jurisdiction to Norway.
Pursuant to the Child Welfare Act, it will be possible, in exceptional cases, for another state that is a contracting state to implement a placement in foster care or in Institutional care in Norway as a voluntary measure.
The amendments to the Children Act mean, among other things, that it has now been clarified that consent must be obtained from parents with parental responsibility when an agreed stay abroad for the child is extended or changed, including in cases where a child is left behind in another country. This amendment could prevent conflicts and parental disputes across national borders, and contribute to preventing child abduction.
Consent by children over the age of 12
Requirements have also been introduced that require children over the age of 12 to give their consent to being relocated abroad, staying abroad or travelling abroad when this Is to take place without the parent with parental responsibility. This amendment could prevent children from being left abroad against their will. The amendment could also contribute to preventing forced marriages (and female genital mutilation).
Parents’ right to bring a case before the courts concerning the relocation of their child to another state
With effect from 1 July, parents will be given a new right to seek a court order to relocate their child to another state. This amends the current law, whereby a court, in its decision, cannot facilitate a parent removing his/her children from the country without revoking the parental responsibility of the other parent.